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In demanding communications between the Justice Department and Paxton's office, Durbin argued those documents aren't protected now that Texas has sued to halt the Deferred Action for Childhood Arrivals Program.

WASHINGTON — A top Senate Democrat is raising questions over whether the Trump administration conspired with Texas Attorney General Ken Paxton and state officials in an effort to end the Deferred Action for Childhood Arrivals program.

On Wednesday, a day after Paxton announced Texas is leading a seven-state legal challenge against the immigration program, Illinois Sen. Dick Durbin wrote to Attorney General Jeff Sessions demanding details of communications between the Trump administration and state officials involved with the lawsuit.

He specifically requested any communications preceding Paxton's June 2017 threat to sue the Trump administration unless it rescinded the program by last September; the Trump administration's subsequent announcement about plans to end DACA; and the lawsuit Texas filed this week, among other documents.

“This lawsuit again raises serious unanswered questions about whether the Trump Administration is conspiring with Texas and other states to undermine DACA,” wrote Durbin, who has led a so-far unsuccessful push for a permanent solution to the expiring program.

The Obama-era program, opposed by many Republicans on the grounds it was unconstitutionally created, shields children brought to the country illegally from deportation. Trump issued an order in September ending the program in six months, kicking it to Congress to resolve, but various court challenges have kept it on life support as talks floundered.

Though “conspiring” has a connotation of illegality, Durbin did not accuse Sessions of legal violations. Instead, the Senate minority whip essentially argued the Justice Department cannot withhold the requested documents now that the parties are legal opponents.

The Justice Department and Paxton’s office did not immediately respond to inquiries Wednesday.

But Stanley Brand, an ethics lawyer with Akin Gump in Washington, dismissed Durbin’s letter as part of a “legal muddle.”

“I don’t know what he means by collusion. I guess that’s the term du jour now,” Brand said.

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“He hasn’t cited a statute or judicial construction that supports the notion that the attorney general is precluded from talking to or coordinating with state attorneys general on this issue, particularly since the entire issue of DACA and its legality has been challenged ... and is still in court,” he added.

Privileged communications?

In his letter, Durbin notes that Sessions, a former senator and immigration hardliner, has voiced support for states’ suing over DACA.

He quoted a June 30, 2017, interview with Fox & Friends in which Sessions said he likes "that our states and localities are holding the federal government to account, expecting us to do what is our responsibility to the state and locals, and that's to enforce the law."

“I cannot recall the Attorney General of the United States ever welcoming a threat to sue the President,” Durbin wrote.

At a hearing in October, Durbin asked Sessions whether he communicated with state attorneys general who threatened to sue over DACA last June. Sessions replied that such communications are potentially privileged.

“I do not recall any Attorney General claiming a privilege regarding the disclosure of communications with people who have threatened to sue the United States,” Durbin said in the letter, asking Sessions to provide the legal basis for the claim.

Durbin also noted that Paxton had publicly acknowledged communicating with the White House and Justice Department about the legal threat. Asked by Politico in October if the Trump administration prodded Texas to sue, Paxton said: "I wouldn't say [that]. We were motivated by our desire to see that the Constitution was followed."

Kathleen Clark, a government ethics lawyer and law professor at Washington University in St. Louis, said there’s nothing in Durbin’s letter that indicates a legal violation on behalf of Sessions or Paxton. She added that, without seeing the communications, it’s difficult to assess whether there’s an ethical issue.

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Clark also said the senator is correct in stating that Sessions can’t claim legal privilege over those communications, as the Trump administration and Texas are technically now legal opponents, regardless of shared ideology.

In other words, the Justice Department “doesn't appear to have a legal argument to withhold communications,” she said.

But even if the Justice Department can’t claim the communications are privileged, Brand said, “good luck” getting them.

New legal motion

Separately, Paxton's office filed a motion for a preliminary injunction in the U.S. District Court for the Southern District of Texas, asking the court to bar the federal government from issuing or renewing DACA permits while the new legal challenge proceeds.

Trump and other DACA critics say that former President Barack Obama overstepped his authority in using executive power to grant long-term residency to immigrants in the country without congressional approval.

But Trump has signaled openness to continuing the program. In announcing plans in September to phase out the program by March, Trump called on lawmakers to work out a compromise.

Those efforts all but collapsed earlier this year, while lawsuits challenging Trump’s decision continue to wind their way through court. Most recently, a D.C. district court rejected the Trump administration's argument for ending the program, giving it 90 days to make a better case or the program will be fully restored.

Texas’ lawsuit sidesteps whether Trump has the authority to end DACA, and focuses instead on whether it was legal for Obama to create the program in 2012. Texas is joined in the suit by the attorneys general of Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia.